Whitacre v. Halo Optical Products, Inc.

501 So. 2d 994, 76 A.L.R. 4th 185, 1987 La. App. LEXIS 8495
CourtLouisiana Court of Appeal
DecidedJanuary 21, 1987
Docket18340-CA
StatusPublished
Cited by24 cases

This text of 501 So. 2d 994 (Whitacre v. Halo Optical Products, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitacre v. Halo Optical Products, Inc., 501 So. 2d 994, 76 A.L.R. 4th 185, 1987 La. App. LEXIS 8495 (La. Ct. App. 1987).

Opinion

501 So.2d 994 (1987)

D. Gregg WHITACRE, Plaintiff-Appellee,
v.
HALO OPTICAL PRODUCTS, INCORPORATED and Optical Dispensary, Defendants-Appellants.

No. 18340-CA.

Court of Appeal of Louisiana, Second Circuit.

January 21, 1987.

*996 Joseph W. Greenwald, Shreveport, for plaintiff-appellee.

*997 Mayer, Smith & Roberts by Ben Marshall, Jr., Shreveport, for defendant-appellant Halo Optical Products, Inc.

Before JASPER E. JONES, NORRIS and LINDSAY, JJ.

JASPER E. JONES, Judge.

This is an appeal of a judgment awarding damages for personal injury in a product liability suit. The plaintiff-appellee is D. Gregg Whitacre. The defendant-appellant is the Halo Optical Products, Inc., manufacturer of "Rec Specs," a lensless plastic goggle used for eye protection during sporting activity.

We reverse that part of the judgment finding the plaintiff guilty of comparative fault and reducing his damage award by 33 1/3%. The judgment is affirmed as amended.

FACTS

On June 2, 1983, the 41 year old plaintiff sustained an injury to his left eye during a game of racquetball when his opponent returned a serve and the ball struck the plaintiff in the left eye causing him to collapse and fall to the floor. At the time of the injury the plaintiff was wearing the lensless protective goggle manufactured by the defendant and had just completely pivoted his body to observe his opponent's actions. A portion of the racquetball penetrated the opening in the goggle compressing the eye. The plaintiff alleged the goggles were defectively designed. He sought damages for medical expenses, pain, suffering, disability and loss of income.

At the time the plaintiff purchased the goggles in August of 1982, he and the salesperson examined the literature in the goggle box which stated the Rec Specs were "the ultimate in sports eyewear" which was a representation that these goggles would provide the best eye protection while playing racquetball. Although plaintiff noticed there were grooves in the eyelet openings of the goggles he was unaware they were designed in this way for the insertion of shatterproof plastic lens and plaintiff assumed the grooves there were for the placement of prescription lens. He did not then wear glasses and neither the product's container nor accompanying literature suggested the use of shatterproof lens in the normal use of the product. Plaintiff physically measured the perimeter of the eyelet openings against a racquetball to ensure the goggles would protect his eyes from being struck by a racquetball. At the time of the accident plaintiff had been playing racquetball for approximately one year. He was a Grade A- or B+ player on a scale of A-E. His opponent was a good Grade B+ player. He had known of other players who did use lens in such goggles but they were prescription eyewear. He had never heard of a racquetball penetrating a goggle eyelet opening and related it was common for a player to be struck in the face.

The plaintiff concluded by relating that as a result of the accident his left pupil is permanently larger than his right, causing problems with glare which he did not have prior to the date of the accident.

Dr. Thomas Moss was accepted as an expert in the field of physics. He conducted tests on the effect of a racquetball directly from the serve off of a racquet striking a lensless plastic goggle, similar to the goggles worn by plaintiff at the time of the accident. He related that a novice player can serve a racquetball at 70 mph and that an experienced player can do so at 127 mph. His investigation showed the hollow racquetball enlongates in flight narrowing its static-state physical dimensions. As a result of the energy imparted from the serve and the smaller dimensions of the racquetball, a portion of the projectile will continue into the goggle opening even though the remainder is inhibited by the plastic frame. The test revealed that such a portion of a racquetball would have penetrated the eyelet opening and come in contact with the plaintiff's eye as a result of a perpendicular strike at 45 mph. He also estimated that at a 45° angle the racquetball would require a velocity of 75 mph *998 to make such contact and at a 60° angle the speed of the racquetball would have to be at least 90 mph to penetrate the eyelet opening.

Dr. Rudolph Troup, Jr. was accepted by the court as an expert in the field of optometry. He examined the plaintiff immediately after the accident. This examination revealed an injury to the cornea and a condition referred to as hyphema (blood in the anterior chamber inside the eye). Dr. Troup immediately referred plaintiff to Dr. Kirchner, an ophthalomologist. Dr. Troup did not examine the plaintiff again until December 8, 1983, at which time he observed plaintiff's left pupil was 25%-30% larger than his right pupil. Dr. Troup stated the accident caused the pupil disorder and found the plaintiff had a 20% chance of developing future complications in the injured eye. He offered his opinion that no such severe damage would have occurred if shatterproof lens had been used. Dr. Troup, who was a racquetball player, expressed the opinion that a lay person would not have known just from the grooves in the goggles that shatterproof lens were required for full protection and that it was not uncommon for a player to be struck in the face during a game and only a "little uncommon" to be struck in the eye.

Dr. F. Randall Kirchner found plaintiff was suffering from traumatic hyphema and admitted him to the hospital for four days. The plaintiff upon discharge from the hospital was required to remain in his home reclined at a 45° angle in bed for ten days. Dr. Kirchner examined plaintiff on June 9, 1983, and observed blood in the left eye. He again examined the plaintiff on July 12, 1983, and found no blood and first noticed that the left pupil was larger than the right pupil. Dr. Kirchner described this pupil condition as permanent and probably the result of the injury but found that no other permanent disability to the plaintiff's vision would occur. Dr. Kirchner discharged the plaintiff on August 12, 1983. The witness concluded by giving his opinion that there was only a 1%-5% probability that a cataract could develop in the left eye in the future as a result of the injury.

Plaintiff was an insurance salesman and had been so employed for thirteen years. He asserted the accident caused him to miss work for approximately ninety days and this equated to a $15,200.00 loss of past income. He arrived at this determination based upon his yearly income for the following years:

1982   $62,435.00
1983   $78,242.00
1984   $74,678.00
1985   $65,575.00 (projected)

His estimated income loss was calculated by using the 1983 figure as a base and adding the difference between 1983 and 1984 income to the difference between 1983 and 1985 income. The result of this calculation is $16,275.00 which is not too far above plaintiff's $15,200.00 estimate of loss of income. This method was employed under the theory that any particular present level of insurance earnings is based upon work performed one or more years earlier. Plaintiff also asserted his particular business endeavors were concentrated in the education market and that overall economic fluctuations would not be a factor in calculating his lost income. No evidence was offered to prove this assertion. Plaintiff did admit that competition was a variable that affects his income but offered no evidence as to its effect for the period he was unable to work. He testified he was paid on a straight commission basis.

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501 So. 2d 994, 76 A.L.R. 4th 185, 1987 La. App. LEXIS 8495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitacre-v-halo-optical-products-inc-lactapp-1987.